Sands v. Nat'l Labor Relations Bd.

• Decision Date: 17 June 2016
• Docket Number: No. 14-1185,14-1185
• Citation: 825 F.3d 778
• Parties: Laura Sands, Petitioner v. National Labor Relations Board, Respondent United Food and Commercial Workers International Union, Local 700, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

825 F.3d 778

Laura Sands, Petitioner

v.National Labor Relations Board, Respondent

United Food and Commercial Workers International Union, Local 700, Intervenor.

No. 14-1185

United States Court of Appeals, District of Columbia Circuit.

Argued February 18, 2016

Decided June 17, 2016

Aaron B. Solem argued the cause for petitioner. With him on the briefs was Glenn M. Taubman.

Robert J. Englehart, Supervisory Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Doug Callahan, Attorney.

James B. Coppess, Washington, DC, argued the cause for intervenor. With him on the brief was Laurence Gold, Washington, DC.

Before: Tatel, Griffit h, and Kavanau gh, Circuit Judges.

Griffith, Circuit Judge:

In this matter, the National Labor Relations Board held that a union does not commit an unfair labor practice by failing to tell a prospective member how much money she will save in reduced dues should she choose not to join. But we cannot reach the merits of that decision. Actions undertaken by the union since the filing of this petition for review have rendered the matter moot. For that reason, we dismiss the petition for review as moot and vacate the Board's order under our equitable authority.

I

In 2004, petitioner Laura Sands began working at a Kroger grocery store in Crawfordsville, Indiana, whose employees had been organized by the United Food and Commercial Workers International Union, Local 700. The collective-bargaining agreement between Kroger and the union included a “union-security clause,” which provided that all grocery department employees—even those who did not join the union—had to pay dues to the union to cover the costs of representational activities.

When Sands began her job at the store, the union sent her a letter and membership application explaining to her what rights and obligations she had under the union-security clause. The application explained that, whether she joined the union or not, she was required to pay dues to the union to compensate it for acting as her collective-bargaining agent. The application was also careful to explain that she need not join the union, and that if she did not, she could refuse to pay for the union's activities that were unrelated to collective bargaining. Important for this case, however, neither the letter nor the application told her how much money she would save if she did not join the union, which for Sands was about $3.50 per month.

Sands decided to join the union and paid all her dues until she quit work at the store in 2005. At that time, she sent the union a letter claiming that she “never wanted to join [the union] in the first place,” and that the union had “deliberately misled” her about her obligations under the union-security clause.¹ Shortly thereafter, Sands filed an unfair labor practice charge with the Board, and the General Counsel issued a complaint against the union. According to the complaint, the union violated section 8 of the National Labor Relations Act (NLRA) by failing to tell Sands when she began work at Kroger how much less in dues she would have to pay if she did not join the union. See 29 U.S.C. § 158(b)(1)(A). Before the administrative law judge (ALJ), the union argued that Sands was not entitled to that information until after she chose not to join the union. The General Counsel and Sands argued that she was entitled to the information at the same time that she was told about the union-security clause. The ALJ recommended dismissing the complaint based on prior Board decisions supporting the union's position.

Both the General Counsel and Sands filed exceptions with the Board, arguing that the Board decisions on which the ALJ relied conflicted with D.C. Circuit case law. In particular, they cited our decision in Penrod v. NLRB , 203 F.3d 41 (D.C. Cir. 2000), where we held that new employees must be given “sufficient information” to decide whether to join the union, including “the percentage of union dues that would be chargeable” should they not join. Id. at 47 (applying Abrams v. Commc'ns Workers of Am. , 59 F.3d 1373 (D.C. Cir. 1995) ). The Board agreed that Penrod and Abrams, the case on which Penrod relied, would answer the question at hand against the union, but quite remarkably dismissed the complaint anyway. The Board asserted that it was not bound to follow Penrod and Abrams because our decisions there had failed to account for a policy that underlay the Board's position. UFCW, Local 700 (Kroger) , 361 N.L.R.B. No. 39 (2014). Before us, the Board recognizes again, as it did below, that our prior decisions would compel us to vacate the Board's order on the merits. The Board hopes that we will revisit those decisions en banc.

Sands petitions for review of the Board's order and asserts jurisdiction under 29 U.S.C. § 160(f). But this case is moot, and we do not have jurisdiction to reach the merits of the petition.

II

All the time that Sands worked at Kroger, she paid full dues as a union member. It was her claim to a refund of at least a portion of those dues that gave her a personal interest in this case. But that interest has disappeared. In 2014, about two months after Sands petitioned this court for review of the Board's decision rejecting her claims, the union refunded the dues she had paid by sending her a check for $350, claiming that those funds equaled the total dues Sands had paid plus interest.² With a refund of her dues in hand, Sands can no longer claim her payment of dues as the basis for her interest in this matter.

Sands expressly waived any argument to the contrary. See Defs. of Wildlife v. Jewell , 815 F.3d 1, 8 (D.C. Cir. 2016) (refusing to reach arguments that were “affirmatively waived”). In fact, she conceded in her reply brief that “she now lacks [a refund] remedy” because the union “has refunded her all of her dues.” Reply Br. 21. We will not therefore consider whether—as counsel first suggested in a supplemental filing just two days before oral argument—her failure to cash the refund check has any legal significance.

We have jurisdiction only over live cases or controversies. U.S. Const. art. III, § 2, cl. 1. We cannot “retain jurisdiction over cases in which one or both of the parties plainly lack a continuing interest, as when the parties have settled.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 192, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). In the labor law context, this means that if the parties have already “completely resolved the dispute” between them “and cured any unfair labor practice” that may have occurred, it is “the court's duty to dismiss th[e] case as moot.” Am. Fed'n of Gov't Emps., AFL – CIO, Local 3090 v. FLRA , 777 F.2d 751, 753 n. 13 (D.C. Cir. 1985) ; see also Calderon v. Moore , 518 U.S. 149, 150, 116 S.Ct. 2066, 135 L.Ed.2d 453 (1996) (per curiam) (“[A]n appeal should ... be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant ‘any effectual relief whatever’ in favor of the appellant.” (citation omitted)). The Board carries the burden to show mootness, Friends of the Earth , 528 U.S. at 189, 120 S.Ct. 693, and it has done so here.

In her briefs, Sands argues against mootness by invoking theories of relief unrelated to her claim for a refund of a portion of the dues she has paid, but none of them establishes her personal interest in what remains of this dispute. First, Sands asks that the union be ordered to post a notice at the grocery store where she worked announcing to the public that the union violated the NLRA. As Sands points out, the possibility of such a remedial notice usually keeps an unfair labor practice case from becoming moot, even if the parties resolve the underlying dispute. See Am. Fed'n of Gov't Emps. , 777 F.2d at 753 n. 13.

But the cases on which Sands relies, in which the interest of a particular affected employee had disappeared, assume an ongoing relationship between the petitioner and the company or union that committed a labor violation. Only then can the posting of a remedial notice address the petitioner 's injury. For example, where the Board petitions to enforce its order requiring a remedial notice to be posted, the Board has an independent interest at stake even if the employee involved in the suit quits the company or dies. See, e.g. , Dep't of Justice v. FLRA , 144 F.3d 90, 95 (D.C. Cir. 1998) ; Dep't of Justice v. FLRA , 991 F.2d 285, 289 (5th Cir. 1993) ; NLRB v. Methodist Hosp. of Gary, Inc. , 733 F.2d 43, 48 (7th Cir. 1984). The Board's orders impose continuing obligations that do not cease when the particular offending conduct ends. See NLRB v. Raytheon Co. , 398 U.S. 25, 27, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970) ; see also Dep't of Justice , 144 F.3d at 95 (recognizing that resolution of the underlying dispute generally does not moot the case “because the Board is entitled to have the resumption of the unfair practice barred by an enforcement decree” (quoting Dep't of Justice , 991 F.2d at 289 ) (internal quotation marks omitted)). Similarly, where a union challenges a Board order in favor of a company, the union has an interest in the court overturning the Board's decision so that the company will be ordered to post a remedial notice at the workplace where the union operates. See, e.g. , Am. Fed'n of Gov't Emps. , 777 F.2d at 753 n. 13 ; Ass'n of Admin. Law Judges v. FLRA , 397 F.3d 957, 960 n. * (D.C. Cir. 2005). In both of these situations, the petitioner, whether the Board or a union, has a concrete stake in the litigation because of its interest in the posting of a notice that a violation of the labor laws has occurred.

Our decision in American Federation of Government Employees, Local 1941, AFL – CIO v. Federal Labor Relations Authority , 837 F.2d 495 (D.C. Cir. 1988), is instructive. In AFGE , an...